Special Lectures of the 70th Anniversary of the End of World War II : Part 1 : The Role of Civil Procedure in Modern Societies

1. Civil Justice in the US In the US, civil justice has in many respects the character of a public drama. But this is only true for a small part of all cases – less than 8% – that are determined by way of contested judgment after trial or hearing. Most disputes are settled before a trial or final hearing takes place, be it after negotiations between the lawyers of the parties or be it as a consequence of mediation by a third neutral. The day in court with a trial or final hearing has become more and more an exclusive and elitist event, because the preparation of a trial or final hearing is very cost – intensive and a prognosis on the outcome of a civil case is difficult in a legal culture, which is based to a remarkable part on case law. In many cases there is a constitutional right to jury proceedings. They are, however, much more risky than disputes before an alone sitting professional judge, and, consequently, less than 1% of all civil cases come to trial before the jury. But it is still this jury procedure that attracts the attention of the public, and this is not without reason. In cases of social or political significance plaintiffs try to take advantages from the dominant role of laymen who may be more open for progressive decisions and high compensations for the victims of a wrongdoer. Jury proceedings are, therefore, the field of claims for punitive damages based on tort or negligence and wanted and reckless disregard of the opponentʼs rights and interests. Prominent examples are mass torts like the asbestos cases, fraud on investors in financial markets, criminal acts against human rights etc. Most of these disputes are class actions where a lead plaintiff represents all the other group members, the final decision or consent judgment upon settlement becomes effective against and for all group members who did not opt out after public notice. Especially class actions are the ideal scenery for litigating attorneys who dominate the procedure by presenting their case through giving evidence by witnesses and